Future Justice? Online Dispute Resolution and Access to Justice*

Heather Scheiwe Kulp, August 8th, 2011

Recently, the Internet Bar Organization hosted a fascinating online discussion entitled The Future of Justice: How Technology is Shaping the Dispute Resolution EcoSystem. The four speakers—two from the U.S., one from India, and one from China—highlighted the promising characteristics of online dispute resolution systems that could lead to greater access to justice for millions of global consumers. They also addressed some, though not all, of the challenges online dispute resolution presents to the justice landscape.

Second, they described what constitutes a “just” dispute resolution process, and how ODR can incorporate these elements. The U.N. Working Group III and international business organizations have been working to incorporate these characteristics in rules and guidelines for ODR. The elements, which should look familiar to offline dispute resolution practitioners, are: impartiality of personnel and decision makers; accessibility and convenience; efficiency and speed of process; reasonable cost; transparency; and (most importantly for online systems) neutrality of the process (which takes shape in the technological platform).

As I come from the court ADR perspective, I am most curious about how ODR may impact the elements above as they relate to developing trustworthy, efficient systems of justice (court or otherwise), accessible to all.

Different than a physical courtroom, ODR does provide the opportunity to stay in one’s home or local community to resolve a dispute, even if the dispute crosses national borders. ODR systems function in a way that may be easier to understand than the specialized language of lawyers and the courts, too. And ODR does not rely solely on a person, who has particular time and financial constraints that may limit the ability to resolve the dispute, to be present at all times. But, I have a lot of questions about whether ODR actually provides access to justice similar to, or better than, traditional justice systems like courts.

Access to ODR must first mean access to technology. Chittu Nagarajan from India made the point that even rural Indians have cell phones. But, reading deeper into the numbers only 70% of Indians possessed such technology and most of those were not “smart” phones that would allow for online or video interface. This leaves out more than 30% of the population from an online dispute system. Even fewer people have access to computers that are connected to the internet at a fast enough speed to make online dispute systems a viable alternative to the clogged court systems. Would ODR and the digital divide create an even greater justice gap than already exists, both in the developed and the developing world?

In exploring ODR processes, parties may first need to be assured of the legitimacy of the platform and informed about the extent of confidentiality before feeling comfortable participating. This is the advantage courts have over other, private-sector systems. In the U.S. at least, people see the courts as a place of legitimacy and trustworthiness, where they can be assured of a fair system. Larger, established organizations such as eBay are more likely to be perceived as trustworthy and secure than lesser known dispute systems, since users have come to trust them with sales purchases and other services. But, do systems designed for profit jeopardize the neutrality of the process, the neutrality people expect from court ADR?

In the wake of recent internet security breakdowns, I also wonder how ODR processes will ensure a sufficient sense of security within the process. Vikki Rogers from the Institute of International Commercial Law introduced the possibility of oversight, whether by the courts, the government, or a private agency, and emphasized that building participants’ trust in the provider would be crucial to any ODR program’s success. But I wonder if governments that are just beginning to discuss privacy online are really equipped to regulate ODR. Instead, governments could be focusing on improving current justice systems—including adding technological methods for communication and resolution—to adapt and change based on the people who need access to them. ODR’s growth also raises the question of whether ODR leaves parties satisfied that they have been heard and given a fair opportunity to participate in the dispute resolution process. Satisfaction levels would likely vary in relation to the particular mode of ODR – parties might respond differently to a video chat, for example, than to a text-only communication or a phone conference. If a party’s having her “day in court” is a substantial factor in achieving satisfaction, then a process that involves little or no face-to-face contact, as in most ODR, might be considered inadequate. One ODR provider called Smartsettle promotes visual blind bidding, in which the parties make numerical offers and the neutral chooses the most “generous” offer; this efficient, numbers-based process would not likely satisfy a party who is concerned with the personal as well as the more technical aspects of the dispute.

Another valuable characteristic of traditional legal systems is difficult to find in most ODR systems—a venue for redress if someone does not agree with their treatment in or decision made in ODR. The panelists discussed three possible paths a disputant may take if they do not agree with an ODR outcome: seek redress within the ODR system, connect to the courts, or agree to accept the resolution since no better alternative exists. Some ODR systems have redress mechanisms built in. So, if you do not agree with the outcome of a negotiation, you can seek mediation, then arbitration, then a jury panel, all within the online platform. As for connecting to the court system, disputants in “developed” countries may go to the courts if they do not agree with a decision. But, disputants in developed and developing countries may not have laws that allow them to take online disputes to court or they may not have a court system that will give them speedy, cost-effective resolution. However, one of the advantages of ODR may be that disputants will have much faster access to a resolution than traditional methods, ADR or otherwise.

With all the innovations in technology, I still wonder if technology can provide adequate legitimacy, quality and access to justice outside the court system.

*Thanks to RSI’s summer intern Nora Kahn for her significant contributions to this post.

Thanks for the very thoughtful post, Heather. We’re planning on responding to some of your excellent points in the next IBO webinar.

You asked: “do systems designed for profit jeopardize the neutrality of the process, the neutrality people expect from court ADR?”

I think this is an excellent question, and one that I’ve spent a lot of time considering. I think there is a way for private and public redress systems to live side-by-side, and even compliment each other, as AAA and JAMS compliment the civil courts. That said, the courts are currently so overburdened, with relentless staff reductions and resource cuts on the horizon (in California they’re calling it “Courtmageddon”) that any appropriate assistance from the private sector in reducing case loads is probably a good thing. The courts are and should always be the ultimate form of redress, but if the private sector can help to get issues resolved before they require the courts, that’s a social good.

I think what excites me most about ODR is that is can provide justice to huge swaths of humanity that have never had access to justice before. Yes, some of these online mechanisms may lack the procedural protections of a full court process, but seeing as how many of these cases would never realistically make it into a courtroom, these kinds of online processes are almost certainly the best practical solution available.

Following up on Colin’s comment, ODR is exciting because it can provide justice to a greater amount of people across the world. Also, I believe that the notion of having your “day in court” has traditionally been a more developed world idea – numerous people abroad don’t get the same opportunity because their courts are inefficient, corrupt, etc. As such, a more efficient alternative, like ODR, that will resolve disputes is welcomed. That said, having your “day in court” is getting harder even in the US. As Colin mentioned, “courtmageddon” is happening in California (and across the nation!) – if someone files suit, it can take five years before their case is looked at! Thus, for people looking for a speedy resolution, ODR will be a viable alternative and help ease case loads from the public sector.

As for trust, it is an uphill battle, but it’s normal with most emerging industries and achievable for ODR. Once ODR has a proven trial run (which it does already, but through eBay), then people will trust the system more. I’m sure that trustmarks (like mentioned by the UNCITRAL model rules) will also spring up and monitor the ODR process. Perhaps one solution can include government monitored ODR for “public” cases: where the government oversees the ODR process if an individual wants to go through a “public” as opposed to “private” ODR process.

Thank you for your thoughts, Colin and Fatima. I agree that overburdened courts could use some relief. Especially since the public sector is shrinking (at least in terms of funding), the private sector seems a context ripe for justice-oriented innovations. As you both point out, this is especially important in countries where public sectors are less trustworthy and effective. I see a myriad of possibilities for ODR to improve people’s experience with justice systems, especially people who live geographically distant from courts and people who do not have means to hire attorneys. My hope for ODR is that it can provide access to justice for those who do not have access now, rather than creating a wider justice gap. I also hope ODR provokes improvements in, rather than supplants, the courts. Colin, I look forward to your upcoming webinar!